Plant variety rights

Brexit: What will happen with Community Variety Rights

|Gert Würtenberger|

With regard to the pending withdrawal of the United Kingdom from the European Union there is only one certainty up to this point: on 29 March 2019 United Kingdom of Great Britain and Northern Ireland will leave the European Union (Brexit). On that day Community plant varieties rights will cease to have effect in the United Kingdom. At this point there is still uncertainty how the United Kingdom will deal with such rights.

The European Union and the United Kingdom are negotiating at the moment the draft Agreement on the withdrawal. The last status published of the draft Agreement is dated 19 March 2018. Title 4 deals with Intellectual Property.

Whether such an Agreement will be signed at all cannot be predicted at this point looking at the difficulties of the present British Government to strive for a hard or soft Brexit based on an agreement with the European Union.

General Rules

(1) Art.121 of the draft Agreement provides a transition period until 31 December 2020 to allow the UK authorities to perform activities which safeguard that the rights existing on the Union level will be transformed into corresponding national UK rights.

It is to be noted, however, that there will be no transition period if the UK and the EU will fail to achieve a withdrawal agreement at all which, moreover, needs to be ratified by both parties before the Brexit day. If their will not occur there will be no transition period.

(2) In particular Article 50 covers the issue of continued protection in the United Kingdom of granted rights on the Union level, whereas Article 51 provides rules for the registration procedure.

According to Art. 51 the holder of Community Plant Varieties Rights which have been registered or granted before the end of the transition period, shall without any re-examination become the holder of a comparable registered and enforceable Intellectual Property right in the United Kingdom as provided by the national law of the United Kingdom. Moreover, Article 51 provides that the national registration of grant of any of the afore-mentioned rights shall be carried out free of charge by the relevant entities in the United Kingdom. No application by the rights’ holders should be necessary, even a correspondence address in the United Kingdom is not provided for.

(3) In cases where the granted right is under attack at the end of the transition period (e.g. by means of an invalidation application) the right will be “”duplicated”. If the attached right will be revoked on the EU level the corresponding (duplicated) United Kingdom right will also be cancelled.

Provisions related to pending applications on the Union level

Any applications for Community plant variety rights are dealt with in Article 55.

Applications filed for Community plant variety rights pending at the date when the transition period ends, a national UK application may be filed during a period of nine months from the end of the transition period. This means that owners of pending Community plant variety right will have time until 30 September 20121 to refile the pending application in the UK.

Further details will be reported in this blog once they will be available.

Published on 18 Jul 2018